Communities and Law: Politics and Cultures of Legal Identities

Introduction: Conceptual Framework and Structure

Introduction: Conceptual Framework and Structure This book is about law and culture as major pillars in state-society relations. More accurately, it is about legal cultures in nonruling communities . To comprehend and examine communal legal cultures as key phenomena in politics, this book develops a concept that I call critical communitarianism. This revised version of communitarian theory conceives of nonruling communities in the context of the politics of identities, the plurality of legal orders, and state domination (often a violent form of domination legitimized through legal ideology ). Critical communitarianism views nonruling communities as cultural foci of mobilization for, or resistance to, state law in the political context of state-society relations. Accordingly, communities require special emphasis in our contemplation of law, politics, and society. As we shall see, whereas liberalism , primarily individual liberalism, has professed fascination with individual autonomy, it has largely ignored the centrality of community in our sociopolitical life. This book aims to rectify that situation through an analysis of communal legal cultures. Empirically, it expounds in depth on three communities in Israel: Arab-Palestinians, feminist women, and ultra-Orthodox Jews. Theoretically, it addresses broad questions and the conceptual inquiry as to culture and law, state and society, identities, legal practices, violence, and actions in politics. This introductory chapter presents the overall structure and conceptual framework of this study. Since the 1960s, research on political cultures has acquired a prominent place in political science. Yet, despite the intellectual engagement in the ways in which people interact with public institutions at the infrastate, in-state, interstate, and transnational levels, political scientists are erroneously inclined to presume that the law and the 2 Communities and Law courts have neither been part of nor affected these cultural processes (Epstein 1999; Shapiro 1993). A group of studies has only recently been recognized for its striving to better comprehend political regimes by delving into the cultural fundamentals of law and attitudes toward law (Caldeira and Gibson 1992, 1995; Epstein and Kobylka 1992; Ewick and Silbey 1998; Feeley and Rubin 1998; Freidman 1985; Greenhouse , Yngvesson, and Engel 1994; Kagan 1991, 1999; Santos 1995; Sarat et al. 1998; Sarat and Kearns 1998; Scheingold 1974, 1984; Twining 2000). While inquiry into norms, values, attitudes, and practices in and toward law has expanded, the conceptualization of law as a form and source of political culture has yet to evolve. Legal culture has only rarely been explicated as a multidimensional fabric in a political context . It has often been defined in a simplistic way, as a set of behavioral modes (e.g., obedience and disobedience) and a set of attitudes toward state institutions. Although the contribution of such studies to our knowledge of the workings of law and society cannot be denied, this book argues for a more profound theoretical perspective. It dwells on legal cultures as practices of those identities that have become embodied in legal consciousness and that have been generated through state-society relations as well as struggles for power. This book assumes diversity in legal consciousness, identities, and practices within communities based on some shared concept ofthe public good in addition to other collective attributes. Whether legal pluralism has prevailed in practice and to what extent are separate issues to be theoretically elaborated and empirically examined in the subsequent chapters. This book has drawn a line between legal pluralism and the plurality of legal orders that has been restricted by state domination. The plurality of legal orders is reflected in hermeneutics and the marginalized communal practices of nonruling collectivities (Merry 1998; Nader 1990; Santos 1995). I follow Santos’s somewhat similar distinction (1995, 114) but expand it theoretically and examine it empirically in communal and communitarian contexts. I submit that communities are crucial pillars in the conjunction of law and politics. As will be explored theoretically and empirically, communities have been constituted by and have been sources of legal consciousness, identities, and practices related to law along a multiplicity of social avenues. Communities’ legal cultures, as this study Introduction 3 will argue and explore, have not been matters of romantic visions about social harmony (Gemeinschaft), but rather they have been pillars in sociopolitical interactions and conflicts. In contrast to myriad previous studies, I do not submit that communities are rather marginal in state-society relations and monolithic in their internal settings. On the contrary, I perceive communities as multidimensional entities that significantly constitute state-society relations despite their certain dependence on state law. The exploration of legal cultures has mainly been focused on countries...